Legislation for Protecting Private Rights

    Chinese legislation entered the fast lane after 1978. In 1982 China started drafting the Civil Code, marking the third period of massive lawmaking in the nation (the previous two took place in 1952 and in the 1960s). It was proposed by Deng Xiaoping when the foresightful state leader realized that it would be impossible for China to establish a market economy without first having a strong legal system.

    Also known as the Constitution of private rights, the importance of the Civil Code can never be underestimated. The state called together around 50 of its top scholars of civil law throughout the nation, a group that including myself. The fourth draft of the Civil Code was completed in 1984. But then objections were raised that since the pattern and direction of reforms in cities had not yet been set, the time was not quite right for China to promulgate the Civil Code. Discussion of the code was therefore postponed. As an alternative, the General Principles of Civil Law were created and enacted.

    Operating under the General Principles of Civil Law, China's legal circle was divided on the relationship between civil and commercial laws. According to international norms, commercial law and civil law are interrelated, but this was a time when the planned economy was still dominant, and the concept of "commerce" per se barely existed in China. There was fierce contention over which direction would better serve the economic development. Should it be government intervention or protection of ownership?

Speaking at a science and technology symposium in 2004.

    As a major player in the market, state-owned enterprises had long been managed as a branch of government departments, and had little, if any, autonomy. Civil Law would confirm their legal status and clarify their rights. In a 1980 article I raised the idea of the independence of state-owned enterprises, and proposed full proprietorship for them under the precondition of state ownership of the means of production. I stood by this opinion during the legislation of the General Principles of Civil Law, where I served on the four-member expert panel.

    My persistence was rewarded. By the end of the 1980s China began to grope towards the establishment of the corporate system. Non-public startups began to appear, triggering off further heated debate on which way things would go – would they degrade to contracted businesses or mature into real-sense shareholding companies, and which would come to dominate the Chinese economy – the non-public enterprises or state-owned?

    To find answers to these questions, I steered my research to commercial law. In 1987 I presided over the compilation of A Course in the Corporate Law, which was used as textbook on a trial basis in the law programs of the nation's higher institutions. It introduced the notion of the corporation as understood in Western countries, and their corporate systems.

    I made it clear that the excessive state control on the business sector should be severed, allowing the fresh air of a free market to enter national economy. In 1993 the Corporate Law was promulgated, endorsing the role of the business as the basic unit of economic activity.

    Creating a Society of Equal Opportunities

    I always loved bicycling. Given my age and my artificial leg, many of my friends felt their hearts in their throats when I rode by. I was a good cycler, and had no major accidents. One day in the late 1980s I rode my bike to a meeting at the headquarters of the Standing Committee of the National People's Congress, China's top legislature. But at the gate the concierge refused to let me in, as he had never seen a committee member arrive on a bike rather than a sedan. The incident soon became the butt of jokes amongst my colleagues and friends.

    I resigned from the post of CUPL president in 1990, and in 1996 I reached the 40th year of my teaching career. In an article to mark this event I wrote: "Despite all the trials and tribulations of the past years, I have never regretted the path I chose. If I was given an opportunity to choose my career in the next life, I would still prefer to teach in a university."

    After I left the National People's Congress in 1992, I was elected a deputy to the People's Congress of Haidian District, Beijing. During that period I was a leading figure in the drafting of several important new laws, including the Property Law.

    In my view the Property Law still has space for improvement, but from a historical perspective it marks a big leap forward for Chinese law towards equal protection of both public and private rights. It is no exaggeration to call it epoch-making.

    Numerous laws have come into being since the mid-1990s, cultivating a belief that we have met the goal of building a sound and complete legal system. I don't think so. The quantity of statutes alone cannot guarantee rule of law.

    In 1994 I published an article entitled "Shifts in the State-Society Relationship – Changes in Current Legal Conceptions in China," in which I expressed the opinion: "At the core of the transition from a planned economy to a market economy is the issue of how to handle the relationship between the state and the society." The essence of a planned economy is the supremacy of state power, while a market economy is based on the recognition of the superiority of social power. As I understand it, the rule of law is buttressed by social power rather than the intangible state power, thereby, ensuring individuals access to a happy stable life that they are entitled to by their society.

    The shifts in the state-society relationship encompass six aspects: from following free will to following laws, from administration centeredness to rights-and-interests centeredness, from state controlled businesses to business autonomy, from highly nationalized property rights to socialized property rights, from state will to autonomy of will, and from rule of men to rule of law.

    The gap between rich and poor continues widening in China, so I think the state, along with enterprise, is obliged to secure for every citizen a decent life, as is prescribed in the law. But state responsibility amounts to more than simply doling out aid. Real change will come with the creation of a society in which people have equal opportunity and a level playing field.

    I am always outspoken, and perhaps more so after my retirement. I have never feared that I might face ill consequences for my remarks, as I believe China will never slide backwards after so many years of reform and opening-up.

    The rise in social conflicts in recent years cast doubts on China's opening-up and reform in the eyes of some people. I think Chinese entrepreneurs have a social obligation to ward off the backpedaling of the nation. Disadvantaged groups must be kept in mind.

    Finally I Can Speak My Mind

    Two years ago I published a collection of speeches All I Can Do Is to Shout. I could do more when I was a university president and a member of the NPC Standing Committee. But now, as a retiree, I can do nothing but speak out on some issues.

    In this more liberal and tolerant society I can finally say what I want. After all the dramatic social turmoil I know it is difficult to remain candid and honest in all circumstances. I am relieved that I have adhered to the values of an intellectual, and have spoken from my heart at crucial moments in the past 30 years.

    I am not satisfied with the progress in China's legal system. Big advances have been made in recent years in the lawmaking sector, but law enforcement capacity and efficiency are yet to be improved. Compared with the dynamic reforms that have taken place in the economic system, those in the political system are laggard, hindering further reform and opening-up of the nation.

    To bring transparency to government power is key to the work of bettering China's legal system, meaning a shift from an "infinite government" to a "finite government."

    I am optimistic about the future of China's legal system. Modern conceptions of law are spreading fast among Chinese people, particularly the youth. Meanwhile, law graduates of universities are playing a growing role in all realms of the society. It has become an established world trend for law professionals to appear in the top rank of state politics, with China following that course.

    But we have to remain sober about this. For a big nation with a history of thousands of years of feudalism, it will take the unrelenting efforts of several generations before the rule of law takes root.